UNITED STATES of America, Appellee, v. James Clarence STOLTZ, Appellant, 149 F. App'x 567

PER CURIAM. At issue is whether Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), applies retroactively on collateral review of a conviction or sentence. This court holds that it does not. On November 17, 1999, James Clarence Stoltz was convicted of conspiracy to manufacture, distribute and possess with intent to distribute in excess of 500 grams of methamphetamine. On appeal, this court affirmed the conviction and sentence. United States v. Zimmer, 299 F.3d 710 (8th Cir.2002). Stoltz did not seek certiorari with the Supreme Court, rendering both his conviction and sentence final.

On October 20, 2003, Stoltz filed a habeas petition challenging both the conviction and sentence. The district court denied all of Stoltz’s claims except for the Blakely issue, which it certified for appeal under 28 U.S.C. § 2253(c)(3). This case is controlled by United States v. Booker, — U.S. —, —, 125 S.Ct. 738, 746, 160 L.Ed.2d 621 (2005), and Never Misses A Shot v. United States, 413 F.3d 781 (8th Cir.2005). In Never Misses A Shot, this court held that Booker did not apply retroactively on collateral review. This court followed the analysis in Teague v.

Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 2522, 159 L.Ed.2d 442 (2004). Although a new rule of criminal procedure announced by the Supreme Court applies to all criminal cases then pending on direct appeal, it does not apply to convictions that are already final, except in limited circumstances. See Never Misses A Shot, 413 F.3d at 783 (citing Summerlin, 542 U.S. at —, 124 S.Ct. at 2522).

Where a conviction is final, the new rule is retroactive only if it is either a substantive rule or a “watershed rule” of procedure “implicating the fundamental fairness and accuracy of the criminal proceeding.” Summerlin, 542 U.S. at —, 124 S.Ct. at 2522 — 23 (quoting Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257,108 L.Ed.2d 415 (1990)); Never Misses A Shot, 413 F.3d at 783 (citing Summerlin, 542 U.S. at —, 124 S.Ct. at 2523; Teague, 489 U.S. at 310 — 11, 109 S.Ct. 1060; United States v. Moss, 252 F.3d 993, 997 & n. 3 (8th Cir.2001)).

A new rule is substantive when “it alters the range of conduct or the class of persons the law punishes.” Summerlin, 542 U.S. at —, 124 S.Ct. at 2523. A new procedural rule, however, is fundamental only when without it “the likelihood of an accurate conviction is seriously diminished.” Id. The Eighth Circuit previously held in Moss that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is not of “watershed magnitude” and thus does not apply in collateral proceedings. Moss, 252 F.3d at 997.

Following Moss, Never Misses A Shot held that Booker does not affect criminal convictions that became final before Booker was decided. Never Misses A Shot, 413 F.3d at 783. Just as Booker cannot be applied retroactively, neither can Blakely. See Booker, 125 S.Ct. at 746. The Blakely rule is not substantive because it does not alter the range of conduct or the class of persons the law punishes — it only addresses what facts a judge may use to determine a sentence. True, the rule announced in Blakely is a new procedural rule because it was not compelled by Apprendi See United States v.

Price, 400 F.3d 844, 848— 49 (10th Cir.2005), petition for cert. filed, (May 31, 2005) (No. 04-10694). However, the Blakely rule, like the Booker rule, is not of watershed magnitude. Cf Never Misses A Shot, 413 F.3d at 783. The Blakely rule is not so fundamental to fairness that without it the likelihood of an accurate conviction or sentence is seriously diminished. Even after Blakely and Booker, the federal sentencing guidelines are advisory, and a sentence within the guidelines is presumptively reasonable. See Booker, 125 S.Ct. at 757; United States v. Lincoln, 413 F.3d 716, 717 (8th Cir.2005).

Every circuit court to consider the issue has held that Blakely is not retroactive. See, e.g., Schardt v. Payne, 414 F.3d 1025, 1036 (9th Cir.2005); Lloyd v. United States, 407 F.3d 608, 610 — 11, 615 — 16 (3d Cir.2005), petition for cert. filed, (U.S. Aug. 5, 2005) (No. 05-5769) (explaining appellant originally claimed relief under Blakely, but holding “[t]hat argument is now, of course, governed by the intervening decision ... in Booker”); Price, 400 F.3d at 848; Varela v. United States, 400 F.3d 864, 866 — 67 (11th Cir.2005), petition for cert filed, (U.S.

June 30, 2005) (No. 05-6041) (holding that although appellant claimed relief under Blakely, “[t]o the extent Varela’s appeal turns on the application of Blakely, it also turns on the application of Booker”); Carmona v. United States, 390 F.3d 200, 202 (2d Cir.2004); Cuevas v. Derosa, 386 F.3d 367, 367 (1st Cir.2004) (holding that appeal claiming relief under Blakely was premature because Supreme Court had not decided if Blakely applied to federal sentencing guidelines). Accordingly, this court holds that Blakely does not apply retroactively to convictions or sentences on collateral review. .

The Honorable David S. Doty, United States District Judge for the District of Minnesota.